Grafton Merchanting Gb Ltd Trading As Buildbase V. Sundial Properties (gilmerton) Limited
| Jurisdiction | Scotland |
| Judge | Sheriff N.M.P. Morrison QC |
| Court | Sheriff Court |
| Date | 30 January 2013 |
| Docket Number | A473/12 |
| Published date | 08 April 2013 |
A473/12
IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
JUDGMENT
by
SHERIFF NMP MORRISON, QC
in the cause
GRAFTON MERCHANTING GB LTD t/a BUILDBASE
Pursuer
against
SUNDIAL PROPERTIES (GILMERTON) LIMITED
Defender
__________________
Act: MacColl, Advocate, instructed by BBM, Solicitors, Wick
Alt: McGregor, Simpson & Marwick, Solicitors, Edinburgh
EDINBURGH, 30 January 2013
The sheriff, having resumed consideration of the cause, allows to parties, before answer, a proof of their respective averments on a date to be afterwards fixed; reserves the question of the expenses of this debate meantime as agreed between parties.
NOTE
The contractual circumstances
[1] The defender applied to the pursuer for a trade credit account. The application form, which the defender completed and returned, contained the pursuer's terms and conditions. It is produced and adopted as part of the pursuer's pleadings in article 2 of condescendence. Condition 5(a) provided that payment for goods supplied on a credit account, unless otherwise agreed in writing by the pursuer, was due and payable not later than the last day of the month following the month of delivery. In an attempt to pre-empt a purchaser trying to rely on the purchaser's terms and conditions in a subsequent purchase order, condition 1 of the pursuer's conditions provided:
"All orders are accepted by the Company solely on these Terms and Conditions, which override any terms and conditions stipulated, incorporated or referred to by the Customer whether in its order or any negotiations. No variation or addition to these Terms and Conditions shall be incorporated into the Contract unless such variation or additions and the Company's agreement thereto are both expressly agreed in writing."
[2] The defender sent in a purchase order on 14 April 2009 for cedar deckboard in response to a quotation from the pursuer on the same date. The purchase order referred to the order being subject to the defender's terms and conditions (averred to be printed on the back). Condition 15 of those conditions is averred by the defender in answer 2 as providing that the defender had the right to require the goods to be delivered according to schedules submitted by them; and the defender had the right to defer or suspend deliveries. The defender's terms and conditions were not produced and not adopted as part of its pleadings. Rather strangely, Mr McGregor submitted that it was for the pursuer to do that.
[3] It was averred by the pursuer and admitted by the defender that, following the purchase order, the defender sought that the pursuer, and the pursuer agreed to, store the goods ordered by the defender; and, it was averred by the pursuer, the pursuer allowed the defender to pay for the goods as it required them. Thereafter the defender took delivery of, and paid for, some of the goods. Some two and a half years later, in September 2011, the pursuer wanted payment for the remainder of the goods and rendered an invoice. The defender did not pay because it had not requested delivery. The pursuer sued for payment on the ground that, under its conditions, the defender was bound to take delivery and pay for the goods. The defender pleaded that, by virtue of its condition 15 which the pursuer had accepted, the defender had not requested delivery; and it did not have to pay until delivery.
[4] There are three further points to note.
(1) There was a dispute about whether the pursuer received only a fax of the front page of the purchase order without the defender's conditions (which the pursuer avers and the defender denies) and whether an employee of the pursuer subsequently went to get them from the defender's office on 14 April 2009 (which the defender avers and the pursuer denies).
(2) In answer 2 of its pleadings, the defender admits that the pursuer's conditions applied, but goes on to aver that the defender's conditions also applied (not that its conditions applied instead of those of the pursuer). The averments of the defender which the pursuer sought to exclude from probation were, however, to the effect that the defender's conditions applied.
(3) The application by the defender for a trade credit account was made in June 2006; but there were no averments in the pleadings of a course of dealing.
The issues
[5] The principal issue at debate was whether only the pursuer's conditions applied to the contract. This was a" battle of the forms" issue with the unusual twist that the defender avers that both parties' conditions apply. The important point is whether it is possible for a seller (or offeror), by a condition such as the pursuer's condition 1, to prevent a purchaser (or offeree) from relying on his terms and conditions by rendering a purchase order with different conditions.
[6] There was an additional submission about the defender's averment that payment was not due until delivery.
[7] For the pursuer, Mr MacColl did not seek decree de plano in terms of the pursuer's third plea, but sought to exclude from probation certain averments of the defender. He accepted that there would require to be a proof of quantum.
The battle of the forms argument
[8] For the pursuer, the argument was simple. The defender's conditions could not apply because that could occur only if, by virtue of condition 1 of the pursuer's conditions, the parties agreed in writing. That had not occurred; the defender's condition 15 did not apply and the pursuer's conditions did. Accordingly, the defender's averments about the application of its terms and conditions should not be remitted to probation. These averments were in answer 2 from "Said goods" in line 16, to "with the pursuers." in line 31, on page 6 of the record in number 18 of process. The pursuer's case was not predicated on whether it had received the defender's terms and conditions but on whether the defender's conditions had effect at all under the "last shot" principle even if they had been communicated to the pursuer, and a proof of that issue was not necessary.
[9] I was referred to Specialist Insulation Ltd v Pro-duct (Fife) Ltd, [2012] CSOH 79, a case in which, unusually, each party argued that the other party's conditions applied. In that case, the pursuer's conditions, in its quotation, stated that offers were accepted subject to its conditions (including arbitration) unless otherwise agreed in writing; there was no such agreement. The defender then issued a purchase order along with separate conditions (including adjudication) not referred to in the purchase order, which required to be signed by both parties but which were not signed by the pursuer. The pursuer supplied the goods. It was argued for the pursuer that the defender's conditions applied. Lord Malcolm held that the pursuer's conditions applied; in other words the pursuer's argument, that the last shot principle applied, was unsuccessful. That case, it was submitted, supported the pursuer's argument in this case.
[10] For the defender, it was submitted by Mr McGregor that there should be a proof before answer because there was a dispute about whether the defender's conditions were brought to the attention of the pursuer; the parties' actions (in relation to the agreement to store the goods and whether the pursuer's accepted the defender's conditions) might be relevant to which conditions formed the contract. A proof would be of assistance in determining what the conditions were by finding out how the contract operated.
[11] It was then argued by Mr McGregor...
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